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Hastings Communications and Entertainment Law Journal

Authors

Anna C. Camp

Abstract

Romantic relationships among co-workers: should employers have the right to suppress such activity? Employers often view the widespread practice of dating among co-workers as highly problematic. In light of increased sexual harassment suits, many employers attempt to limit or eliminate intimate relationships among employees through the institution of "no-fraternization" policies. The strictest of these policies allow for legal termination of employees that violate the policy's terms, and can include total prohibition of intimate relationships among co-workers. Employees argue that such bans, which also affect employees' off-duty intimate association, should be held unconstitutionally invasive of employees' privacy rights or invalid on public policy grounds. Unsurprisingly, this is a contentious-and ultimately litigious-issue. Upon judicial review, courts have revealed a strong deference to employers. However, experts argue that recent cases such as Ellis v. United Postal Senrice (2008) express a shift among courts toward a more protective posture regarding employees' constitutional rights. The Seventh Circuit in Ellis expressed severe misgivings about strict no-fraternization policies that punish otherwise hard-working employees for quietly dating co-workers. The Ellis court explicitly noted that they did not endorse such a policy generally, although they denied invalidating the policy at issue. Some experts propose that courts should invoke public policy and the practical problems with no-fraternization rules to strike down the strictest of these rules. Many believe the court in Ellis and other cases show it is only a matter of time before they do.

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